Adams on Africa | Issue 2

SOUTH AFRICA’S SUPREME COURT
CLARIFIES SCOPE OF CPA’S PRODUCT
LIABILITY PROVISIONS
Danie Strachan looks at how a recent
judgment provided clarity with regard to
the principles of product liability in the
context of the CPA.
On occasion, consumers might purchase goods
that cause harm or injuries. Before South Africa’s
Consumer Protection Act (CPA) came into force, a
consumer had to prove that the harm was caused by
the negligence or intent of the supplier of the goods. However,
the CPA changed this position.
In terms of section 61, a goods supplier is liable for harm
caused as a consequence of supplying unsafe goods, a product
failure, defect or hazard in goods, or inadequate instructions
or warnings, irrespective of whether the harm resulted from
any negligence on the producer’s part or not. In essence, the
consumer merely needs to prove that the goods caused harm
and does not have to prove fault on the part of the supplier.
In a recent case, a cyclist sued Eskom for severe electrical
burns sustained after coming into contact with a low hanging
power line while cycling. The cyclist’s claim was based on the
strict liability placed on suppliers in terms of section 61 of the
CPA. He alleged that the harm was caused due to the electricity
supplied by Eskom and that Eskom was therefore liable. The
Pretoria High Court held that Eskom was strictly liable in terms
of section 61 of the CPA, stating that liability extended to “any
natural person” who suffered harm caused by a supplier and
not only a consumer within the context of the CPA.
Eskom appealed against the High Court’s judgment. The
Supreme Court of Appeal (SCA) examined the CPA as a whole
and considered the legislature’s intention. It decided that the
plaintiff, as a cyclist, was not a consumer in relation to Eskom
because there was no consumer transaction with Eskom, as
a supplier of electricity, in the ordinary course of business.
The plaintiff was also not the user of the electricity when the
incident occurred. The SCA concluded that Eskom was not
liable for the harm in terms of section 61 of the CPA and the
appeal was therefore successful.
This judgment provides clarity with regard to the principles
of product liability in the context of the CPA. Suppliers can
now be sure that the CPA’s provisions cannot be used to hold
them liable for harm or damages that were caused outside the
scope of a consumer transaction. However, this does not mean
that the supplier will escape responsibility. The supplier may
still face liability under the common law, but the person who
suffered harm would have to prove that the harm arose as a
result of the supplier’s fault.
For queries regarding the provisions and requirements
of South Africa’s Consumer Protection Act, contact the
Commercial & Litigation department at <strong>Adams</strong> & <strong>Adams</strong>.
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DEBUGGING MOBILE
APP PATENT PROTECTION
The commercial success of mobile applications
has resulted in an increasing interest in protecting
associated intellectual property rights, such as
patents, trade marks and copyright. Johnny
Fiandeiro explains.
A mobile app is a computer program designed to run on a
mobile device, such as smartphones and tablet computers,
and comprises software on the mobile device that interacts
with various servers.
In general, an invention is patentable if it’s novel and
inventive, but computer programs as such are generally not
patentable. Mobile apps, however, and other computerimplemented
inventions are typically protected by means
of method claims in a patent specification – the method
involving a series of steps, in respect of which a patentee
claims exclusivity.
To understand whether or not, and how, an app can be
patented, it’s useful to determine whether the app addresses
a problem in a unique way.
In practice, however, it’s usually only the very specific features
of an app that meet the relatively stringent criteria of novelty
and inventiveness required for patentability.
A common query, especially when considering the speed
at which mobile apps are launched and implemented, is
whether it’s worth protecting a mobile app against replication.
This is a valid query and concern and, in many respects, the
patent system is not well-suited for protecting mobile apps
because of related costs and time frames. Despite these
factors, there are circumstances in which it makes very good
sense to apply for patent protection for a mobile app (or at
least for specific features of the app, as discussed above). In
general, a patent is likely to provide the greatest commercial
benefit where:
• the expected lifespan of the technology is relatively long,
typically at least three years;
• the technology is of broad general interest, appeal or
application; and
• there is scope for competitors to use the technology in their
own apps, either to compete directly, or to develop new
variations and applications of their own.
“
As with all inventions, including
mobile apps, the pros and cons of
obtaining patent protection as set
out above need to be carefully
considered within the context of
the commercial value (or potential
commercial value) of the invention.
WhatsApp is a good example of a start-up which put all
its energy into developing its product and did not pursue
patent protection (initially, at least). Facebook acquired
no patents when it bought WhatsApp, although it currently
has around six patent families. Arguably, patents would
not have helped WhatsApp in any event because it
created value through rapid growth of a low-cost service
to connect users together. Even a competitor who tried
to copy WhatsApp would have struggled to gain traction
among users.
As with all inventions, including mobile apps, the pros and
cons of obtaining patent protection as set out above need to
be carefully considered within the context of the commercial
value (or potential commercial value) of the invention.